Oyster Zone QR

10-03-14 Law on the Half Shell SHELLSHOCKED – Saving Oyster to Save Ourselves

“Overfishing and pollution have devastated oyster reefs worldwide, leading to their labeling as the ‘most severely impacted marine habitat’ on the planet. With a single oyster able to filter over fifty gallons of water per day and reefs of oysters forming the bases of entire ecosystems and economies, the effects of this destruction have been dire. Attempts are underway to rebuild oyster reefs, with New York Harbor the focus of the youth-led Billion Oyster Project. Yet such endeavors have faced tremendous opposition, ranging from the Obama Administration’s removal in 2014 of Drakes Bay Oyster Farm in Marin County, CA and the Supreme Court’s subsequent refusal to review the decision, to the State of Massachusetts blocking current efforts to use oysters to clean up the polluted Mystic River, to New York’s Department of Environmental Conservation hampering individual homeowner efforts to clean up New York’s polluted waterways through oyster farming.”

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10-03-14 Dunnington, Bartholow & Miller LLP, NY

Law on the Half Shell: Film Screening and Discussion On Oysters and the Law October 15 in NYC

Dunnington partner Raymond J. Dowd invites you to a screening of the internationally acclaimed documentary SHELLSHOCKED – Saving Oysters to Save Ourselves and follow-up discussion of the legal controversies brewing over oysters. The event is to be held on Wednesday, October 15, 2014 at 6:00 p.m. at the New York County Lawyers’ Association (14 Vesey Street, New York, NY).

09-08-14 Gordon Bennett’s Trouble with the Truth: In his declaration submitted to the federal court (attached), he swore to the following under penalty of perjury:

“[Save Our Seashore] is a 501(c)(3) organization”

–FACT: a search of the IRS 501(c)(3) website for “Save Our Seashore” returns no hits.

“the [Sierra] Club (and many other environmental organizations) had long anticipated and supported” the decision to shut down the oyster farm

–FACT: in the 1970s, the Sierra Club and EAC supported the continuation of the oyster farm even in a designated wildness area

“boats and oyster workers … share’ the same sandbars that the seals need for nursing their pups”

–FACT: the oyster boats and workers stay at least 700 yards away from the harbor seals. The Park Service’s analysis ofmorethan 300,000 photographs of those sandbars found “no evidence” that the oyster boats and workers ever disturbed a single harbor seal.

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07/31/2014 PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION TBOC v DOI

Case No. 14-3246-YGR PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Plaintiff seeks an order preliminarily enjoining Defendants the Department of the Interior (“DOI”) and the National Park Service (“NPS,” collectively with the DOI and the respective head of each, “Interior Defendants”), until this Court decides the merits of this lawsuit

West Marin lawful advocate and Forest Knolls resident, Barbara Scott, organized a common law court that convened on Monday, July 28 in Point Reyes to decide the Drakes Bay Oyster Company court case.
No members of the Supreme Court were in evidence.
The ten-person jury (reduced to nine when one member was later removed because of ties to the farm itself) unanimously voted to transfer all leases held by the farm to the Republic of California Department of Fish and Wildlife. The California Republic Bear Flag will now fly over the Inverness farm.

07/31/2014 Common law jury finds oyster closure illegal, By Christopher Peak, Point Reyes Light Something unusual happened Monday night at the fire station meeting room in Point Reyes: citizens actually volunteered for jury duty. Drakes Bay Oyster Company supporters took the law into their own hands in a civil trial. After 22 minutes of deliberation, the jury of 10 locals—including Dave Brast, Melinda Leithold, Chloe Cook, Jude Vasconcellos, Linda Peterson and Loretta Murphy, the farm’s manager and a plaintiff in another lawsuit—returned a unanimous verdict in favor of the Lunnys, finding their operating lease should be renewed and transferred back to the state to allow the oyster farm to continue operating.For the complete article go to

Commission abused its discretion and violated environmental law

INVERNESS, CALIF. — Drakes Bay Oyster was vindicated today in its fight against unjust enforcement orders imposed last year by the California Coastal Commission. The Marin County Superior Court overturned those orders in every significant respect, finding that the Commission’s unfair process was an abuse of discretion and a violation of environmental law.

The enforcement orders were based on false allegations for which there was no evidence. Before a hearing last February, expert evidence disproving the allegations was provided by the Lunnys, but the Commission voted to exclude all the evidence the Lunnys presented in their own defense.

For the full press release click on or copy and paste the link below into your web browser:

The Ninth Circuit Court of Appeals this week affirmed a lower court ruling denying a request by the Environmental Action Committee, the National Parks Conservation Association, the Natural Resources Defense Council and Save our Seashore to be named intervenors in federal litigation between Drakes Bay Oyster Company and the federal government. Outside parties can be designated as intervenors in a case if they can prove that their particular interests are not being properly represented; intervenors can file briefs as official parties and participate in hearings. The organizations argued that their interests were specifically focused on wilderness protection, whereas the federal government’s position was based on broader issues of the management of national parks. District court judges previously ruled that the groups’ arguments would be too similar to the federal government’s and would result in unnecessary paperwork, but said they could still participate as amici curaie. Although the Ninth Circuit affirmed that ruling, the circuit also ruled in September against Drakes Bay’s request for an emergency injunction to continue operations as it fights the park’s decision to remove the oyster farm, which is now appealing that decision to the Supreme Court.

04-16-14 Judge Chernus listened attentively to arguments from both sides, took notes, and at the end of the hearing stated “You’ve given us a lot to think about. I will take it under advisement and get back to you.”

His honor did not specify a date by which he will let us know his decision. Nevertheless, the attorneys are speculating the final ruling may be out within the next three weeks. The ruling could come as early as tomorrow yet on the other hand, it doesn’t have to be out for months from now.

Petition asks high court to review Ninth Circuit decision

At issue is former Secretary of Interior Ken Salazar’s denial of Drakes Bay’s permit to continue operating the 80-year-old oyster farm, even though the original deal for the creation of Point Reyes National Seashore—supported by the Park Service, the Sierra Club, the Environmental Action Committee of West Marin, and every other interested environmental and civic group—was that the oyster farm was always supposed to stay. The Ninth Circuit held that a federal court does not have jurisdiction to review a discretionary agency decision for abuse of discretion. At stake is whether the government, in making countless everyday decisions, can be taken to court when it abuses its power.

“If this judgment is not overturned, government agencies will have the power to deny a permit to any individual or business for any reason, without judicial review,” said Kevin Lunny, owner of Drakes Bay Oyster Company. “Citizens must have recourse in the face of an arbitrary and capricious decision.”

For More on this, click on, or copy and paste into your web browser, the link below

04-02-14 Huffington Post

The U.S. Supreme Court will decide on April 14th if it will hear the case. Along with the jobs of thirty oyster farm employees, what’s at stake is whether citizens can go to court to challenge a decision by a regulatory agency (the Ninth Circuit said no), and whether federal agencies must follow the National Environmental Protection Act in issuing its decisions (the Interior Department says ‘not always’). And whether Californians will be able to continue growing and harvesting some of the cleanest shellfish on earth as they have done for nearly a century.

For the complete article click on or copy and paste the link below into your web browser:

Drakes Bay Oyster Sues Coastal Commission for Coastal Act Violations

Coastal Act requires the protection of aquaculture

INVERNESS, CALIF. — Drakes Bay Oyster filed a cross-complaint today against the California Coastal Commission alleging that the Commission has violated its obligations under the Coastal Act to permit, protect, and promote aquaculture.

To read the full article click on the link below or copy and paste it into your web browser:

01-14-14 Drakes Bay Oyster Co to appeal to U.S. Supreme Court

The following statement is attributed to Kevin Lunny, owner of Drakes Bay Oyster Company, in response to today’s Ninth Circuit denial of its request for an en banc rehearing.

“We believe the Court’s decision not to rehear our case is incorrect, and that the dissenting opinion from Judge Watford will prevail,” said Kevin Lunny, owner of Drakes Bay Oyster. “Because of that, we are requesting our case be heard by the U.S. Supreme Court. We are grateful for our thousands of supporters, partners, customers and patrons that have supported our small, family-owned farm for four generations. We remain committed to succeeding in our fight to remain open and serve our community,” Lunny said.

The small family owned farm has been fighting to remain open despite the National Park Service’s determination to close them down.

The Drakes Bay Oyster Company is a treasured part of California’s coastal zone in the Point Reyes National Seashore. Shellfish from Drakes Estero are an important part of the San Francisco Bay Area’s world famous local, sustainably raised food movement. Modern environmentalists hail Marin County and DBOC as a model for sustainable agriculture. Consistent with Federal policies supporting increasing the Nation’s supply of sustainably raised seafood, California, which leases Drakes Estero to DBOC, has declared shellfish cultivation there to be “in the public interest.”

“…the majority acknowledges that the court has jurisdiction to review agency action for an abuse of discretion when the alleged abuse “’involves violation by the agency of constitutional, statutory . . . or other legal mandates or restrictions.’”

Contrary to the majority decision, the Secretary’s Order does violate a statutory mandate. The PRNS and DBOC are located in California’s coastal zone. The CZMA requires that federal activities comply with the “enforceable policies” of the state coastal plan “to the extent practicable.”The District Court found that the decision to deny the Oyster Farm a permit was “agency action.”The California coastal plan defines aquaculture as agriculture.With regard to agriculture, the “enforceable policies” of the coastal plan provide that: “. . . lands suitable for agricultural use shall not be converted to nonagricultural uses unless continued or renewed agricultural use is not feasible . . ..”

On (California) State’s Retained Fishing Rights

A. Secretary’s Order Conflicts With State’s Retained Fishing Rights.

The Secretary’s Order directing that DBOC cease cultivating shellfish contradicts the July 11, 2012 statement of intent of the California Fish and Game Commission [F&G Commission] to lease the water bottoms to DBOC at least through 2029, “The Commission, in the proper exercise of its jurisdiction, supports and continues to support the agricultural business of aquaculture, and to that end, has clearly authorized the shellfish cultivation in Drakes Estero through at least 2029 . . . in accordance with the Commission water bottom lease granted to [the Drakes Bay Oyster Company.”

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“The effect of [the majority decision] is to allow an agency to thumb its nose at Congress, when Congress trumps a statute, by asserting that the agency is merely implementing the policies underlying the trumped statute,” the appeal said.

Biscoe Ivesters & Bazel LLP attorney Peter S. Prows, who is part of the team representing Drakes Bay, told Law360 on Monday that the “serious issues” raised in the appeal give Drakes Bay a good chance of being heard en banc.

“The majority opinion created a new rule for courts to review agency action,” Prows said. “The idea that a discretionary decision can’t be reviewed by courts is a new and very troubling precedent here.”

Oyster Farm Presses For 9th Circ. En Banc Review In DOI Fight

Law360, Los Angeles (October 21, 2013, 9:20 PM ET) — A major California oyster farm fighting to stay open after the Department of the Interior did not renew its lease asked Friday for an en banc hearing before the Ninth Circuit, saying a September panel decision shielded the agency’s abuse of discretion from judicial review.

For the full article, click on or copy and paste the link below into your web browser:

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10-18-13 EXCERPTS FROM PETITION FOR REHEARING EN BANC

EXCERPTS FROM THE DBOC BRIEF TO THE NINTH CIRCUIT (Rehearing Petition)

First Paragraph of DBOC Brief

“Before it became obsessed with destroying the only oyster farm in Point Reyes National Seashore, the National Park Service had for many decades supported the oyster farm, as did local environmental groups and the community at large. The oyster farm and the surrounding cattle ranches provide the agricultural heritage the Seashore was created to protect. When Congress was considering legislation that became the 1976 Point Reyes Wilderness Act (“1976 Act”), wilderness proponents “stressed a common theme: that the oyster farm was a beneficial pre-existing use that should be allowed to continue notwithstanding the area’s designation as wilderness.” (Op. 40 (Watford, J., dissenting).) To this day, modern environmentalists and proponents of sustainable agriculture praise Drakes Bay as a superb example of how people can produce high-quality food in harmony with the environment.”

Park Service Sustained Vendetta Against Drakes Bay

“Since 2005, for reasons that remain a mystery, the Park Service has changed position and sustained a vendetta against the oyster farm. The Park Service has been reprimanded by the National Academy of Sciences, which in 2009 found that the Park Service had “selectively presented, over-interpreted, and misrepresented the available scientific information”, and by the Solicitor’s Office of the Department of the Interior, which in 2011 found “bias” and “misconduct” in the evaluation of harbor-seal data.”

“Although, as the Secretary recognized, Drakes Bay received the Park Service’s legal analysis only after it purchased the oyster farm (ER 120, see ER 180, ¶64), the majority mistakenly asserted that “Drakes Bay purchased the oyster farm with full disclosure” and that “the only reasonable

For the full petition, please click on or copy and paste the link below into your web browser:

“… it is not well understood that the judges did all agree on a very important fact: When Congress designated the wilderness in the Point Reyes National Seashore in 1976, it thought the oyster farm to be compatible with wilderness and expected the farm to remain indefinitely.”

Jim Linford of Marinwood is a semi-retired appellate attorney and an active member of the California Bar.

For the complete article, click on, or copy and paste the link below into your web browser:

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09-04-13

Drakes Bay Oyster Company Remains Open and Will Petition for Rehearing by Ninth Circuit’s Full Eleven Judge Panel

INVERNESS, CA — The historic oyster farm and last oyster cannery in California announced today that it plans to file a petition requesting that their case be reheard in front of a full eleven-judge panel of the Ninth Circuit. Drakes Bay Oyster Company has assured its supporters that this is not the end for them and has pledged to continue the fight to remain open.

The farm announced that, within 45 days, it will file a petition for an En Banc rehearing. In the meantime, the farm remains open for business.

For the full article, click on or copy and paste the link below into your web browser below:

09-03-2013 Judge Watford’s Dissenting Opinion on the Appeal to the 9th Circuit

“The government will suffer only modest harm if oysterfarming’s eighty-year history in the Estero continues a bitlonger.

But if a preliminary injunction is erroneously denied,Drakes Bay’s business will be destroyed.

That is all DrakesBay must show to demonstrate that the balance of equitiestips in its favor here.”

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted
May 14, 2013—San Francisco, California
Filed September 3, 2013
Amended January 14, 2014

For the complete dissenting opinion click on or copy and paste the link below into your web browser:

* “…Drakes Bay is like to prevail on its claim that the Secretary’s decision is arbitrary, capricious or otherwise not in accordance with law.”

* “The sponsors of H.R. 8002 and S. 2472 were well aware of the oyster farm in Drakes Estero. They nonetheless includes Drakes Estero within the wilderness designation because they did not view the farm’s operations as incompatible with the area’s wilderness status. Commenting on the Senate bill, Senator Tunney left no doubt on that score, declaring, “Established private rights of landowners and leaseholders will continue to be respected and protected. The existing agricultural and aquaculture uses can continue.””

* “The Chair of the Golden Gate National Recreation Area Citizen’s Advisory Committee note that the oyster-farming operations ‘presently carried on within the seashore existed prior to its establishment as a park and have been considered desirable by both the public and park managers.” He therefore recommended that specific provision be made to allow such operations ‘to continue unrestrained by wilderness designation.’”

* “The view expressed by these speakers – that continued operation of the oyster farm was fully compatible with Drakes Estero’s designation as wilderness – was not some wild-eyed notion. It was firmly grounded in the text of the Wilderness Act itself.”

* “…all indications are that Congress viewed the oyster farm as beneficial, pre-existing use whose continuation was fully compatible with wilderness status.”

* “In this case, no conflicting laws actually prevented the Secretary from issuing a permit to Drakes Bay.”

* “It is the equities that carry the day in this case…and the equities strongly favor Drakes Bay.”

The Ninth Circuit Ruled, 2-1 against DBOC. Kevin and Nancy Lunny have instructed the attorneys to prepare an appeal to the entire Ninth Circuit Court of Appeals. Judge Watford’s Dissenting Opinion is powerful, clear and compelling. His Opinion is the reason DBOC is asking for an “en banc” legal review.

For the full document, click on, or copy and paste the link below into you web browser:

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08-17-13 Marin IJ Letter to the editor from Former Assemblyman Bill Bagley, author of Assembly Bill 1024 authorizing transfer of tidelands AND RETAINED RIGHTS TO FISH AND BY STATUTE, OYSTERS ARE FISH

“…there are two leases …. the now cancelled but litigated federal dry land lease used for processing and, separately, the existing and possibly controlling [CA] State Fish and Game Commission oyster lease authorizing the actual planting and harvesting of this seafood in the waters of Drakes Estero….

In 1965, I authored Assembly Bill 1024 to transfer the state-owned Point Reyes tidelands to the Park Service but, pursuant to state constitutional authority, we “reserved to the state the right to fish.”

By statute, oysters are fish.”

For the complete article, click on, or copy and paste the link below into your web browser:

“They cannot make a “very compelling showing” that their interests are not adequately represented by the Federal Defendants, because for the past forty years they have marched in lock step with the Federal Defendants. In the 1970s both took the position that the oyster farm should continue in operation despite the passage of the Wilderness Act. Recently they both changed positions together, and today both insist that the oyster farm must go.”

For the complete article, click on, or copy and paste the link below into your web browser:

On July 2, 2013, the California Coastal Commission (CCC), represented by the California State Attorney General’s Office, made a series of false statements to the Marin County Court in the Faber, ALSA and DBOC v. California Coastal Commission case.

The Coastal Commission accused DBOC of

(a) harming the ecosystem;

(b) exceeding production limits;

(c) “cruising” too close to harbor seals; and

(d) “throwing” garbage into the Estero.

The CCC misled the Court.

Attorneys for Faber, ALSA and DBOC asked that these misrepresentations be corrected. The request was rejected (and new misrepresentations emerged).

As a result, a Motion for Reconsideration was filed yesterday in Marin County Court – Department L.

Here is the actual Motion. It’s relatively short and very easy to read. Every claim and charge was rebutted – by one expert or another.

07-25-13 Point Reyes Light, Why I am Resigning from EAC & Sierra Club by Wigert

By Bill Wigert

“I have been a member of the Sierra Club since 1970. As an attorney, I represented the organization pro bono in two environmental lawsuits. I joined the Environmental Action Committee of West Marin soon after it was formed. As an ardent environmentalist, I venerated both groups: their policies were fact and science-based, and the EAC achieved a unique cooperation between agricultural and environmental communities. Sadly, both organizations have strayed from their principles, and I am not going to renew my membership to either.”

For the complete article, click on the link below or copy and paste it into your web browser:

06-05-13 Attorney Peter Prows responds to Amy Meyer in Sacramento Bee

Citizens commission supported oyster farming at Point Reyes

“…Meyer neglects to mention one key fact: The citizens commission actually supported continued oyster farming in Drakes Estero in perpetuity. In 1976, the commission’s chairman, Frank Boerger, wrote to Congress explaining the oyster farm is “considered desirable by both the public and park managers”, and that the farm should “continue unrestrained by wilderness designation.”

Meyer is certainly entitled to change her opinion of the oyster farm, but she can’t change the historical facts.

05-30-2013: Pacific Shellfish Growers Association (PSGA) filed a Data Quality Act (DQA) with the National Park Service (NPS) on the Science in the Environmental Impact Statement (EIS) prepared for the Drakes Bay Oyster Company (DBOC)

New Data Quality Act (DQA) Complaint Filed With National Park Service On NPS Science in the EIS prepared for the Drakes Bay Oyster Company by Pacific Coast Shellfish Growers Association (PCSGA, based in Seattle, WA), May 30, 2013

Complaint filed pursuant to October 16, 2002, “NPS Director’s Order # 11(B), Ensuring Quality of Information Disseminated by the National Park Service.”

Per regulation, NPS must respond within 60 calendar days.

This is the fifth DQA filed against NPS Science at Drakes Estero since 2007 and the second DQA filed by PCSGA (first was declared “moot” by then-NPS Regional Director, Jon Jarvis). Two, filed by the Point Reyes Light, were simply ignored. Two were declared moot.

When filed, PCSGA included several attachments, not provided here, but included PCSGA comments on the DEIS, NAS Peer Review Comments (prepared by Congressional direction) and comments from ENVIRON, the consulting firm that, on DBOC’s behalf, evaluated the DEIS and especially the soundscape sections.

For more about this, click on, or copy and paste the link below into your web browser:

“….In 2009 Congress enacted a straightforward authority for the Secretary to issue Drake’s Bay Oyster Company a new permit for its shellfish farm in Point Reyes National Seashore. It includes the phrase “notwithstanding any other provision of law” to prevent the Secretary from denying the permit based on a prior congressional designation of “potential wilderness” surrounding the oyster farm. Simple, yes?

When former Secretary Salazar denied the oyster farm a new permit last November, he claimed that actually this statute “expressly exempts my decision from any substantive and legal requirements.”

Former Secretary of the Interior Ken Salazar writes that Congress has exempted him from every other law it ever enacted.

Read that again. That is a member of the President’s cabinet, asserting that Congress has licensed him to do, well, whatever he wants. Everyone who cherishes liberty should be alarmed by the federal government’s interpretation of this law.”

For the full article and the video click on or copy and paste the below link into your web browser:

Next Tuesday, Drakes Bay Oyster Company will face the most important hearing to date in its battle for survival with the federal government, which has illegally denied the Oyster Company a renewed permit to operate within Point Reyes National Seashore. You can read more of the background of their fight here or by listening to our podcast.

Drakes Bay Oyster Company will be asking the Ninth Circuit Court of Appeals in San Francisco to enjoin the federal government from ejecting the Oyster Company from its property, destroying its business and its employees’ jobs, and throwing several employees and family members out of their housing, before the trial court has even considered all of the arguments.

For more on this click on or copy and paste the link below into your web browser:

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“Although nearly fifty years have passed since California conveyed Drakes Estero to Defendants (NPS), they only recently became obsessed with eliminating the oyster farm, which resulted in illegitimate science, misrepresentations of data, incorrect interpretations of law, and violations of NEPA and their own regulations. DBOC has shown that it is likely to prevail on its claims calling these errors to account.”

“In their obsession to eliminate the oyster farm, Defendants have abused the law, the facts, the science—and especially the oyster farm, its employees, and their families. This Court should reverse the district court’s order and maintain the injunction.”

For more on this click on or copy and paste the link below into your web browser:

On April 5, 2013, the Alliance for Local Sustainable Agriculture (ALSA) filed a Petition For Alternative Writ of Mandate with Marin Superior Court against the California Coastal Commission (CCC).

ALSA has joined with Phyllis Faber, a long-time Marin County environmental activist and member of the first California Coastal Commission, to challenge Cease and Desist and Restoration orders (Orders) the CCC recently adopted that will effectively shut down the Drakes Bay Oyster Farm (DBOF), the single most important sustainable shellfish aquaculture operation in the state, located within the Point Reyes National Seashore.

For the complete article, click on, or copy and paste the link below into your web browser:

“Closing the Oyster Farm would have a broad, negative and immediate impact, on the local economy and the sustainable agriculture and food industry in the San Francisco Bay Area, on the school children of the workers who live in the housing units onsite, and, in the longer term, on food security and the U.S. balance of trade. Closing down the oyster farm in Drakes Estero, which has existed since the early 1930s, would be inconsistent with the best thinking of the modern environmental movement and further tear at the fabric of an historic rural community that the Point Reyes National Seashore [Seashore] was created to help preserve.”

These words opened a “Friend of the Court Brief” (attached, PDF) just submitted to the Ninth Circuit Court of Appeals in support of Drakes Bay Oyster Farm prepared by Judy Teichman on behalf Alice Waters, Chez Panisse Restaurant (Berkeley), the Marin and Sonoma County County Farm Bureaus, California Farm Bureau Federation, Marin Organic, Food Democracy Now, ALSA, the Hayes Street Grill (restaurant) and Stacy Carlsen, Ag Commissioner, County of Marin.

To read excerpts from the brief and / or the brief in its entirety, click on or copy and paste the link below into your web browser:

“Cause of Action has exposed a culture of corruption and disregard for scientific integrity perpetrated by the government on the taxpayers’ dime. The Interior Department’s opaque reliance on misrepresented data demands immediate reform of the Agency, its departments, and its Office of Inspector General as well as a complete revision of NPS environmental impact statements.”

To read the full article click on the link below or copy and paste it into your web browser:

03-04-13 Cause of Action 36 page Report on DOI use of Flawed Science

Keeping Entrepreneurship at Bay How the Department of the Interior Uses Flawed Science to Foreclose the American Dream

Advocates for Government Accountability, Cause of Action on March 4, 2013 issued a 36 page investigative report:

“The findings in this report demonstrate the substantial misrepresentation and manipulation of scientific facts by NPS, MMS, USGS, and DOI and highlight the need for intense review and scrutiny. The corruption, lack of transparency, and void of accountability among these agancies are occurring on the dime of American taxpayers and demand serious and thorough review.”

For more on this as well as the entire report click on the link below or copy and paste it into your web browser:

03-04-13 Cause of Action held a conference call discussion of how Freedom of Information (FOIA) requests led to key findings of a pattern of scientific misconduct involving three govt agencies. For more on this and the link to the recording click on the link below or copy and paste it into your web browser:

The decision last November by Interior Secretary Ken Salazar not to renew The Drakes Bay Oyster Company’s lease was based on a number of inaccurate and misleading claims. Here are five myths that the Secretary, his supporters, and the National Park Service use to justify the oyster farm’s eviction from Drakes Estero:

To read the full article click on the link below or copy and paste it into your web browser:

Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity.

WHEN: Friday, January 25, 2013 at 2:00pm Pacific Time

WHERE: Oakland Courthouse, Courtroom 5 – 2nd Floor

1301 Clay Street, Oakland, CA 94612

RSVP: This hearing is open to the media and the public. Cameras will not be allowed inside the courtroom.

12-13-12 Tess Elliott, Editor Point Reyes Light

On Wednesday four law firms working pro bono for Drakes Bay Oyster Company applied for a temporary restraining order with the federal district court in San Francisco.

The filing states that Interior Secretary Ken Salazar’s order to shut down the oyster farm would result in the immediate loss of 2.5 million oyster larvae and the layoff of one-third of the farm’s workforce—roughly 10 individuals—over the holiday season; it notes that 15 people live on the farm, including seven children.

It also argues that fulfilling the Secretary’s order to dismantle operations and remove all infrastructure within 90 days is not possible.

The lawyers state that a restraining order must be granted in cases in which there is proof of serious irreparable harm and where it is in public interest to grant a restraining order. A hearing on the request has not yet been set.

12-03-2012 To read the actual lawsuit filing, click on the link below or copy and paste it into your web browser: (it is 100 pages please be patient)

11-27-2012 The Final EIS is out, Secretary Salazar came to Drakes Estero, and a Secretarial “decision” is slated to be announced later this week.

DBOC reviewed the NPS Final EIS (FEIS) on the DBOC pending permit extension and just submitted comments to the Secretary. In the very short time available to review this 1000 page document, the sections on “sound” were reviewed because it was the only environmental impact determined by NPS to be MAJOR if the farm is allowed to continue. The NPS science in this $2 million EIS is false – it’s just plain wrong.

Your attention is directed to the ENVIRON letter and Dr. Goodman’s analysis.

According to ENVIRON:

ENVIRON LETTER.

“The soundscape impact analysis remains fundamentally flawed. It does not offer sufficiently coherent and correct information upon which to base informed decisions regarding noise impacts from the DBOC facility. The FEIS appears to be based more on pursuing a specific, preconceived result than in factually considering noise generated by the DBOC operations and transmission of such noise to other locations.”

“NPS has spent time and money developing an equally invalid, slanted, and incomplete assessment.”

“DBOC SOURCE NOISE LEVELS ARE STILL GROSSLY EXAGGERATED

The noise analysis reported in the DEIS relied on gross exaggerations of DBOC source noise levels based on misuse of data from measurements of other sources.”

NPS’s repeated, unsupported criticisms regarding the quality and utility of the ENVIRON sound level measurements are simply a disappointing attempt to cast doubt where none exists. In lieu of taking actual sound level measurements of the specific equipment whose noise it is attempting to assess, NPS instead opted to criticize but then essentially substantiate and then use the ENVIRON sound level measurement data representing DBOC equipment. At the same time NPS has continued to use an exaggerated range of possible equipment noise levels based on false comparisons with unrepresentative equipment.

“The National Park Service (NPS) has failed to meet a critical National Environmental Policy Act (NEPA) public review deadline. As a result, the NPS cannot publish a Final Environmental Impact Statement (FEIS) for the Drakes Bay Oyster Company Special Use Permit (DBOC SUP) that provides even the minimum period of public review prior to November 30, 2012.”

Secretary Salazar, in that letter, was also told that:

“By letter on September 17, 2012, we also documented legal inadequacies identified by the National Research Council of the National Academies of Sciences in the Draft EIS (DEIS) for the DBOC SUP, which make the DEIS so inadequate as to preclude meaningful analysis pursuant to NEPA regulations. These inadequacies also prohibit NPS from proceeding to finalize the DEIS into a FEIS, but instead, require revision and republication of the DEIS (an exercise that also cannot be completed prior to November 30, 2012).”

In April 2008, NPS and DBOC executed a special agreement – a Memorandum of Understanding – signed by then-NPS Regional Director, Jon Jarvis, that gave DBOC a “seat at the table” in any ensuing NEPA process. However, NPS unilaterally ignored that commitment throughout this process. Now, in light of the NPS to meet its own deadlines, DBOC is in the dark as to what is happening and the letter just sent provides Secretary Salazar with a proposal for approving our pending permit application.

For the full text of the The DBOC letter to the Secretary, from their attorney, Click the link below:

10-10-2012

Charlton Bonham, the Director of the State of California, Natural Resources Agency, Department of Fish and Game, in a letter to Point Reyes National Seashore Superintendent Cicely Muldoon, wrote to “encourage continued cooperation between the National Park Service, the California Department of Fish and Game (“Department”), and Drakes Bay Oyster Company….”

He cites the “47 years” of the two agencies having worked together “to allow continued aquaculture in Drakes Estero.” and “….fishing rights included the rights…for shellfish cultivation.”

He reminds her of the “…almost five decades, the State has supported aquaculture in Drakes Estero….” and that “continued cooperation … will benefit the environment, the community, and the local economy, consistent with our agencies’ unique history of managing this property….”

10-04-2012

Today, Cause of Action (CoA), a government watchdog nonprofit, sent a letter to a bi-partisan group of Senators, House Members and other elected officials including Senator Feinstein and Chairman Issa, and the Marin County Board of Supervisors, regarding the Data Quality Act (DQA) complaint which stated, “on August 7, 2012, the Lunnys and Dr. Goodman, with the assistance of Cause of Action, a nonprofit dedicated to fighting arbitrary federal overreach, filed a DQA complaint with the National Park Service for its intentional use of inaccurate, non-transparent, and deliberately misleading information. Federal law requires that NPS respond within 60 days to this complaint, and either begin the process of correcting its errors or explain why it will not.”

09-14-12:

Counsel for the Lunnys, Ryan Waterman, submitted a letter to NPS which concluded,“Based on the (National Academy of Sciences) NRC Report’s findings, NEPA regulations (Federal) prohibit the National Park Service (NPS) from finalizing the Drakes Bay Oyster Company Special Use Permit Draft Environmental Impact Statement (DEIS) because the NRC Report shows that the DEIS is so inadequate as preclude meaningful analysis pursuant to 40 C.F.R., Section 1502.9(a). Instead, NPS must now revise the entire DEIS, and recirculate and seek public comment on the revised DEIS.”

The Waterman letter to NPS then states, “Yet it is simple to apply the NRC Report’s highly critical structural and substantive critique of the DEIS’s scientific information, analyses, and conclusions to NEPA regulations to reach the inescapable conclusion that the entire DEIS must be revised and recirculated. This is so because the errors identified by the NRC Report are pervasive and effect the DEIS as a whole.”

Counsel then says, “The errors identified by the NRC Report go to the very heart of the DEIS.”

The Waterman letter concludes stating, “NEPA regulations are clear that a federal agency may not finalize a draft EIS that precludes meaningful analysis under 40 C.F.R. Section 1502.9(a). The NRC Report demonstrates unequivocally that the DEIS fails to pass this basic test in a number of important ways. Accordingly, NPS will commit NEPA error if it finalizes the DEIS before preparing and re-circulating a Revised DEIS because the findings made in the NRC Report demonstrate that the DEIS is so inadequate as to preclude meaningful analysis….Instead NPS must now revise the DEIS, and re-circulate and seek public comment on the Revised DEIS.”

The 12-page letter, part of a 100-page detailed submission, identifies one DEIS failure after another based on the National Academy’s review. This is the second highly critical Report from the National Academy of Sciences. In 2009, the NAS severely criticized the NPS for manipulating and misrepresenting data. The new NAS (NRC) report concludes that little changed.

09-14-12

STOEL RIVES LLP, Attorneys at Law, letter to NPS:

“NEPA regulations are clear that a federal agency may not finalize a draft EIS that precludes meaningful analysis under 40 C.F.R. Section 1502.9(a). TheNRC Report demonstrates unequivocally that the DEIS fails to pass this basic test in a number of important ways. Accordingly, NPS will commit NEPA error if it finalizes the DEIS before preparing and re-circulating a Revised DEIS because the findings made in the NRC Report demonstrate that the DEIS is so inadequate as to preclude meaningful analysis….Instead NPS must now revise the DEIS, and re-circulate and seek public comment on the Revised DEIS.”

08-20-12

NPS response to Abbasi Cause of Action

Referencing the complaint requesting correction of specific items in dEIS and in the Atkins final Report, the “Information Collection Clearance Officer of the NPS Business Services Directorate stated:

“Your complaint has been referred, and will be evaluated, and you will be notified in accordance with the provisions of National Park Service Director’s Order #11 B: Ensuring Quality of Information Disseminated by the National Park Service and Department of the Interior Information Quality Guidelines.”

08-07-2012

a Data Quality Act Complaint was filed with the National Park Service by Dr. Corey Goodman and Kevin and Nancy Lunny, owners, Drakes Bay Oyster Company to make corrections as required by law and policy in the NPS Draft Environmental Impact Statement (DEIS) and the Atkins Final Peer Review (March 2012).

NPS must acknowledge the report within 10 days and by statute, respond within 60 days.

Summary of Complaint

“To comply with applicable minimum information-quality standards, all scientific information that NPS disseminates in publications such as the DEIS and Atkins Peer Review Report must be, among other things, accurate and timely; based on the best available science and supporting studies and the most current information available; highly transparent; supported by reliable data, including on-site data when required by law; consistent with sound and accepted scientific practices and policies; evidence-based; reproducible by qualified third parties; and objective and unbiased in terms of both presentation and substance.

NPS can only claim that Alternative A is the “environmentally preferred alternative” because it flagrantly and repeatedly failed to comply with these minimum information-quality standards. Conclusions in the DEIS that DBOC causes “major” long-term adverse impacts on Drakes Estero’s “soundscape” and “wilderness” are based on inaccurate, nontransparent, false, and misleading data and analysis that violates NPS’s information-quality guidelines, as are claims that DBOC causes “moderate” long-term adverse impacts on Drakes Estero’s “harbor seals,” “birds and bird habitat,” and “visitor and recreation experience.” If the DEIS is corrected to meet basic minimum information-quality standards, it becomes clear that DBOC’s operations do not have long-term adverse impacts on Drakes Estero’s environment.”

08-07-2012

Cause of Action Complaint

RE: Complaint about information Quality.

“Information disseminated by NPS in the DEIS and Atkins Peer Review Report fails toconform to minimum information-quality standards established by the OMB Guidelines, DOIGuidelines, and Director’s Order #11B. This inaccurate, nontransparent, and deliberately misleadinginformation is reasonably likely to cause severe harm to the Lunnys—who may be forcedto close their family business, Drakes Bay Oyster Company (hereinafter “DBOC”)—and Dr.Goodman, who is a user of the information provided in these publications and adversely affected by the scientifically invalid data and methods used therein.”

02-13-12

US Senate Committee on Environment and Public Works article

As part of their ongoing investigation into the scientific misconduct within the Obama Administration, Senator David Vitter (R-La.) and Senator James Inhofe, Ranking Member of the Senate Committee on Environment and Public Works, sent a letter today to Secretary of the Interior Ken Salazar asking him to explain why he consistently ignored serious complaints regarding the scientific integrity of the Director of the National Park Service (NPS) Jon Jarvis, and why these allegations were not addressed during Mr. Jarvis’ nomination process.

02-13-12

Letter from Senators Vitter and Inhofe to Salazar

Senators Vitter and Inhofe to Secretary Salazar:

“On three occasions in 2009, while the Jarvis nomination was being vetted, Dr. Corey Goodman, an elected NAS member, submitted three letters to you detailing a case of serial scientific misconduct by Jon Jarvis and NPS officials and scientists under his direct supervision…We are in possession of the three letters dates April 27, 2009, May 10, 2009 and May 16,2009. That a distinguished member of the NAS would need to send such letters of concern to you directly is distressing. Even more distressing is the fact that you have failed to respond.”

12-10-2011

“…October 22, 1965 letter from the director of the Department of Fish and Game to the superintendent of the Point Reyes National Seashore stating that since [Assembly Bill] AB 1024 ‘reserved fishing rights to the state, (it) appears all state laws and regulations pertaining to shellfish cultivation remain in effect [and thus] are applicable to the Johnson Oyster Company.’ On March 25, 1966 Superintendent Leslie Arnberger responded: ‘This office is quite agreeable with your) interpretation…” All of this was confirmed by the National Park Service in a 1974 environmental review of possible wilderness status: ‘…control of the lease…from the California Department of Fish and Game, with a renewal indefinitely, is within the rights reserved by the State.’

Folks who wish to change history or legal rights should not try to do so while the author is still alive.”

10-20-11

Republican Congressman, Darrell Issa, Chairman of the House Committee on Oversight and Government Reform sent a letter to Secretary of the Interior Ken Salazar of formal announcement of a Congressional investigation

Issa, former founder and CEO of Directed Electronics named entrepreneur of the year by Inc. magazine, Member of the House Judiciary Committee, requested all documents by noon 11/04/11, and the appearance in Washington for “transcribed interviews” as of 11-07-11.

Called to appear are NPS officials, scientists, and a DOI solicitor, namely:

08-11-11

Pete McCloskey is a former Republican Congressman, now Democrat, Co-Founder of Earth Day, Author of Endangered Species Act, 2006 Recipient of Sierra Club Edgar Wayburn Award, 2010 Recipient of Sierra Club Environmental Hero Award, and co-author of 1976 Point Reyes Wilderness Act.

William T. Bagley is a former Assemblyman, and co-author of 1976 Point Reyes Wilderness Act.

John L. Burton is a former Congressman co-author of 1976 Point Reyes Wilderness Act.

on August 11, 2011, wrote a letter explaining the original intent of the 1976 Wilderness Act was to protect and preserve the ranches, dairies and oyster farm when designing the Point Reyes Wilderness Area.

Also:

“It seems highly possible to us that there are elements in the Park Service Administration, which have had a secret agenda for some years to drive out not only the oyster farm, but the privately-leased ranches as well. There have been a whole series of small impositions on the ranchers which serve to make their operations more difficult. As of last weekend, for example, the Park Service had made no attempt to keep the wild tule elk herds in the northern wilderness section of the Seashore from breaking out onto the cattle ranches in the pastoral zone.

We think it might go a long way to restore public confidence in the Park Service to hold appropriate congressional committee hearings to ascertain why the Service seems dedicated setting aside the words of Director Wirth of fifty years ago, and the testimony of Congressman Burton and Senator Tunney and the words of former Assistant Secretary Nat Reed regarding the 1976 Wilderness Act.”

01-19-09 Dr. Goodman letter to NAS, NRC Ocean Studies Board panel

“RE: New Information Shows that the National Park Service Committed Scientific Misconduct in the Documents it Presented”

“…all of the ‘mariculture-related’ disturbances in 2007 cited by the NPS occurred in less than two weeks prior to the May 8, 2007 Marin County Board of Supervisors hearing.

Tide charts and direct experimental analysis … reveal the sandbars in question were under water when seals were supposedly observed getting flushed into the water….by oyster workers that time clock and payroll records show were not working.”
For the text of the entire report, click the link below.

“RE: “ Violations of Federal Policy on Research, THE CASE FOR SCIENTIFIC MISCONDUCT; The attempt to Cover-up the NPS Misconduct and Prevent its Investigation by Jon Jarvis, and David Graber; and the Failure to Properly Investigate Misconduct in Objective and Timely Fashion by the DOI’s Office including Attorney Molly Ross.”

11-22-96 The 1996 Letter from Neubacher to the Bank of Oakland, attesting to the NPS’s intention to renew the lease.

If then, why not now?

“….As stated previously, the NPS would like the planned improvements to occur at Johnsons. In fact, the NPS has worked with Marin County planners to insure the facilities attain county approval. Moreover, the Park’s General Management Plan also approved the continued use of the oyster company operation at Johnson on Drakes Estero….”

Click on the link below to see a copy of the actual letter from then Superintendent Don Neubacher to the Bank of Oakland

This quote is taken from the letter submitted to ”Senator J. Bennett Johnston, Chairman of the Senate Parks and Recreation Subcommittee”

made a part of the record for ”Hearings on Point Reyes Wilderness Legislation, Before the Subcommittee on Parks and Recreation of the Committee on Interior and Insular Affairs, United States Senate, Ninety-Fourth Congress, 2d Session”

found on page 356, in his opening paragraph (emphasis added for clarity):

Mr. Chariman: My name is Jerry Friedman. I am a resident of West Marin and am

serving my second term as Chairman of the Marin County Planning Commission

During the past four months I have been representing Congressman John Burton on all matters relevant to the House counterpart of S. 2472 H.R. 8003.

Today I am here representing the following:

Marin Conservation League

Tomales Bay Association

Inverness Association

ENVIRONMENTAL ACTION COMMITTEE OF WEST MARIN

League of Women Voters

Bay Area:

Environmental Forum, Marin & Sonoma branches

Assemblyman Michael Wornum

(continued at the top of page 357:)

” These organizations not only support S. 2472, but they wholeheartedly endorse the wilderness recommendations of the GGNRA Citizens Advisory Commission….”

“3. All the organizations have deep and serious concerns over the lack of protection presently afforded to the tidal zone at Point Reyes. Such areas as Drake’s and Limantour Estero along with the seal rookery at Double Point deserve wilderness status. The State’s interests in these areas has been minimal with the exception of Limantour Estero which is a Research Natural Area, and we note little activity by the State in the area of patrol or marine resource monitoring during the past years. We accordingly hope that the tidal zone will be managed as wilderness area and we find this approach consistent with the State’s reservation of fishing and mineral rights. We wish to note the following points in this regard:

A. S. 2472 would allow the continued use and operation of Johnson’s Oyster Company in Drake’s Estero.”

E. We note nothing in the law which precludes the Congress from designating the tidal zone as wilderness despite the reservation of fishing and mineral rights….”

Page 358:

“….It is rare that so many organizations have agreed upon wilderness legislation for a given area. It is also unusual that such wilderness status DOES NOT IN ANY WAY INTERFERE WITH THE MANNER IN WHICH THE PUBLIC PRESENTLY USES THAT PARK….”

This is followed in the record on page 358 – 361 by the following:

“STATEMENT OF JOHN MITCHELL, SUBCOMMITTEE ON WILDERNESS, [GGNRA] CITIZENS ADVISORY COMMISSION….a fifteen-person Commission appointed in January 1975 by the Secretary of the Interior in accordance with the law establishing the Recreation Area….”

“….The balancing of the various interests represented by our recommendations was derived from a series of public hearings and subcommittee task force meetings. The compromises presented have won acceptance from representatives of each sector of the public that expressed concern. It is therefore hoped that the entire recommendation can be included in the legislation and the Committee report, so that the special provisions necessary at Point Reyes are firmly established. In that way, future administrative decisions can be assured of being in consonance with the principles and the details recommended.

Statement of Frank C. Boerger,

15 person Commission appointed in January 1975 by Secretary of Interior in accordance with the law establishing the Recreation Area.

“….The balancing of the various interests represented by our recommendations was derived from a series of public hearings and subcommittee task force meetings. The compromises presented have won acceptance from representatives of each sector of the public that expressed concern….”

DESCRIPTION OF THE RECOMMENDED WILDERNESS AREA

“….An important factor in considering wilderness for the seashore was the intent of the commission that desirable existing uses be allowed to continue…..”

“….Two wilderness units are recommended for the northern half of the Seashore. They are separated by an area that includes the “pastoral zone” (designated in the enabling legislation to continue to accommodate ranching activities) and the access roads that serve most of the Seashore’s popular beaches. The first unit includes…Drakes and Limantour Esteros, and the lands that connect those features.”

NONCONFORMING USES

“Two activities presently carried on within the seashore existed prior to its establishment as a park and have since been considered desirable by both the public and park managers. Because they both entail use of motorized equipment, specific provision should be made in wilderness legislation to allow the following uses to continue unrestrained by wilderness designation:

1 Ranching operations on that portion of the “pastoral zone” that falls within the proposed wilderness…..

2 Operation of Johnson’s Oyster Farm including the use of motorboats and the repair and construction of oyster racks and other activities in conformance with the terms of the existing 1,000 acre lease from the State of California.”

NOTE:

The final bill designated Drakes Estero as only “potential wilderness”.

The Interior Department told Congress that Drakes Estero could not be full wilderness until California gave up its rights there–which it has NOT done.

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2 Comments

Maureen Kayes

Looks like he sent a letter to Superindent Cicely Muldoon for the recent 50th year Anniversary of the Seashore AND his father used to be the Secretary of the Interior. If you aren’t having any luck with Salazar, it may help to get these other heavy hitters in DC involved.

Interesting fact also about Salazar is that he is a rancher and farmer so you would think he would be advocating for the Oyster Farm!

We have. Re: Salazar, you would think so, but alas, no. Check out the article under NPS Elsewhere, where he threatened to “punch out” a reporter over being questioned on his stand against wild horses on (NPS) public lands and where he threatened a photographer!